Li Wan and Others v. The Queen

CACC000321/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 321 OF 1970

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Coram: Mills-Owens, Huggins & Pickering, JJ.

Date of Judgment: 28 December 1970

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JUDGMENT

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Huggins J.:

1. The six appellants were jointly indicted on one charge of armed robbery and all except the sixth appellant were further charged on a second, similar count. In addition, the third appellant was indicted on two counts of unlawful possession of arms and ammunition. There were other charges laid against the second and fourth appellants but no evidence was offered and we are not concerned with them. The first appellant was found guilty on both counts by verdict of a jury and the other appellants all pleaded guilty to the charges pursued against them. The first appellant has appealed against conviction and the other appellants have appealed against sentence. Although the first appellant indicated a desire to apply for leave to appeal out of time against sentence he was dissuaded by a hint from the court that the sentences imposed upon him might be considered unduly lenient.

2. The first count concerned a robbery at the Overseas Trust Bank in Canton Road, Kowloon, on 21st January. Shortly before 11 a.m. the fourth and sixth appellants entered the bank with another man who has not been identified. The fourth and sixth appellants were armed with pistols. While the fourth appellant stood guard inside the door the other two threatened the staff and proceeded to take cash amounting to some $200,000 from drawers in the counter and in the cashier's office. The second, third and fifth appellants kept watch outside the building, the fifth appellant being armed with a pistol. The first appellant was not, it appears, present at the scene of the robbery but there was evidence of an accomplice that the first appellant was present when the robbery was planned, that he took part in the discussions, that he supplied arms to this accomplice for the purpose of the robbery (although the witness subsequently withdrew from the adventure) and instructed him how to use a pistol. That testimony was corroborated by a statement found to have been made by the first appellant and the statement indeed showed that he had provided two more pistols to the active participants and had shared in the proceeds of the robbery.

3. The second count related to a similar raid on the American Express Bank in Yin Hing Street, Kowloon, on 23rd December, 1969. The third appellant approached the manager's office and there produced a pistol. While threatening the manager and another employee with the pistol he ransacked a cabinet and drawers in the office. Meanwhile the fifth appellant, also carrying a gun, jumped over the counter in the banking hall and drove most of the staff into a lavatory. He then took cash from various drawers. The third appellant came out of the manager's office and discovered the bank's safe, whereupon he demanded that it be opened. An employee explained that it had a two key combination lock and that one of the keys was in the possession of a person not then in the bank. All this time the fourth appellant, also armed with a gun, was keeping guard inside the door. When the robbers found that they could not obtain access to the safe they all left, taking with them a sum of $18,260. Once again the first appellant was not present at the scene but in a statement in answer to the charge he admitted taking part in the robbery and, as we understand it, the suggestion was that he had helped to plan it in much the same way that he had helped to plan the raid on the Overseas Trust Bank.

4. Although the contention of the first appellant upon his appeal against conviction was that there was no sufficient evidence to support the convictions and that he was innocent, there was clearly evidence which, if believed by the jury (as it must have been), supported the convictions. The first appellant suggested that the judge was biased against him but we found no ground for that allegation. In our view there was no substance in his application for leave to appeal against conviction and it was refused.

5. The learned judge said that he found difficulty in distinguishing between the six appellants in the matter of sentence but in the event he imposed the following terms of imprisonment.

6. It has been urged on behalf of the last five appellants that the sentences passed upon them were in accordance with what has been described as "the market rate" for offences of this kind despite the fact that they pleaded guilty and, as it is submitted, that their personal circumstances justified some mitigation of the rigor of the law. We think the short answer to this argument is that in the light of the prevalence of such offences the market rate is going up. Perhaps any persons disposed to follow the example of these appellants should bear this in mind. In our view the first appellant was fortunate that the learned judge did not send him to prison for twelve years and we are not persuaded that the other appellants have been treated with undue harshness. Nor do we believe the learned judge overlooked any of the factors advanced in mitigation: indeed he took considerable trouble in his effort to distinguish between them. He had probation officers' reports on each of the appellants and expressly referred to them: he also expressly referred to the fact that all had clear records and that the second to sixth appellants had pleaded guilty.

7. The strongest plea has been made on behalf of the second appellant. In particular he was compared with the sixth appellant, who also had been engaged in only one of the robberies but who, although he had been armed with a pistol and took an active part, received no greater sentence than the second appellant. The learned judge referred to the facts that the second appellant was not armed and that he was merely keeping watch outside the bank. The second appellant must have expected (and, indeed, intended) that the sixth appellant would do what he in fact proceeded to do inside the bank and, as principal in the second degree, the second appellant was no less involved than the other. It seems to us that the second appellant was, if anything, more blameworthy than the sixth appellant. He is a man of some education and it is all too often forgotten that education carries with it a responsibility. Although he did not go armed himself he admits having distributed arms to some of his fellow criminals and his own statement seems to support the allegations by the third and fourth appellants that he recruited them.

8. Both before the trial judge and before us, counsel made a plea ad...(illegible) misericordiam based upon the misfortunes of these appellants during their early years outside the Colony. Against that must be set the special responsibility of those who seek refuge in any country to obey the laws of that country. Whatever their background the appellants must have been well aware that armed robbery was a serious offence in any country.

We see no ground for interfering with any of these sentences and the applications for leave to appeal against sentence are refused.

Representation:

1st Appellant in person.

Jackson-Lipkin assigned for 2nd-6th Appellants.